Richards v Dare
[2002] VSC 144
•2 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6863 of 1999
| DEBORAH SUSAN RICHARDS (as Executrix of the Will of EVELYN MAY RICHARDS, deceased) | First Plaintiff |
| And | |
| JOHN CHARLES DORIA BUTLER (as Administrator of the Estate of RONALD STUART DARE, deceased) | Second Plaintiff |
| v. | |
| DENNIS WILLIAM DARE | First Defendant |
| And | |
| ROBYN LEE FROST | Second Defendant |
| And | |
| REGISTRAR OF TITLES | Third Defendant |
---
JUDGE: | HARPER, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 FEBRUARY 2002 | |
DATE OF RULING: | 2 MAY 2002 | |
CASE MAY BE CITED AS: | RICHARDS & ANOR. v. DARE & ORS. | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 144 | |
---
CATCHWORDS: Costs – Transfer of proceeding from the Family Court of Australia to the Supreme Court of Victoria following Re Wakim (1999) 198 CLR 511 – Whether costs reserved in the Family Court give rise to a "right" "conferred" by that Court – Application by successful defendant for those costs – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Jewell | Barry Kenna & Co |
| For the Second Defendant | Mr R McInnes | Mahonys |
| No appearance for First and Third Defendants |
HIS HONOUR:
This proceeding has an unusual lineage and an equally unusual history. It began on 20 June 1994, when the second defendant (Robyn Lee Frost) commenced litigation in the Family Court of Australia against her former de facto husband, the first defendant (Dennis William Dare).
The file number given by the Family Court to this proceeding was 6590 of 1994. It moved swiftly towards its (as we now know, interim) climax. Final orders were pronounced by Frederico, J. in the Family Court on 1 August, a mere six weeks after litigation commenced. They were orders which indirectly affected Evelyn May Richards and the estate of Ronald Stuart Dare. The present first plaintiff (Deborah Susan Richards) is Evelyn Richards' executrix. The person named as the second plaintiff (Garnet Stewart Fielding) was, at the date of his joinder by order of Master Kings on 5 November 1999, the administrator of the estate of Ronald Dare. On 18 July 2000, however, Gillard, J. ordered that Mr Fielding be removed as the second plaintiff "and John Charles Doria Butler be substituted as the second named plaintiff as administrator" of that estate. Orders are required to effect the necessary consequential change to the title of this proceeding. I will in due course pronounce those orders.
It is important to understand the connection between the parties. Mrs. Richards was the de facto wife of Ronald Dare. Dennis Dare is his son. After Ronald's death, Dennis commenced a trilogy of proceedings involving Ronald's estate. Mrs. Richards was a party to those proceedings. Mr. Fielding was not, having been appointed administrator of Ronald Dare's estate only on 15 December 1993; but, upon his appointment as administrator, he necessarily became interested in their outcome. Judgment was given in one of them on 4 February 1993. Judgment in the other two was handed down on 10 November 1993. Dennis lost them all. He was ordered to pay costs. According to the plaintiff, by 15 September 1999, these amounted to $130,962.85 even before the costs of Dennis Dare's unsuccessful appeals (which costs had not then been taxed) were taken into account.
Not unreasonably, Mrs. Richards wanted Dennis Dare to pay her what he owed. He was of a contrary mind; or, at the very least, he was (and remains) either unable or unwilling to meet his obligations to her. She was therefore distressed to learn that, by the orders made by Frederico, J. on 1 August 1994, much of the property in which Dennis Dare then held a real or apparent interest was transferred to Robyn Frost.
To the extent that the transfers were effective, they necessarily had the result that the pool of funds from which Dennis Dare's debts could be paid was diminished. By an application made on 29 June 1995 in the original Family Court proceeding (that is, No. 6590 of 1994) Mrs. Richards sought (as her primary head of relief) a declaration "that the orders made and filed at the Family Court of Australia … by the first and second respondent on 1 August 1994 … are void and made without jurisdiction."
The application, or some aspect of it, came before Brown, J. on 24 June 1997. This hearing was followed by a succession of others: before Judicial Registrar Ramsden on 27 March 1998, before Morgan, J. on 12 June 1998, before Carter, J. on 17 December 1998 and again before the same judge on 19 April 1999. In each case, save that of the last (on 19 April 1999) costs were reserved. Not even the last, however, finally resolved the dispute.
In these circumstances, Mrs. Richards on 15 September 1999 instituted this proceeding in this Court. Or, to perhaps put it more accurately, she transferred the Family Court proceeding to the Supreme Court. She was then the sole plaintiff; I have already indicated that Mr. Fielding was added as a plaintiff on 5 November 1999. The title to the Supreme Court proceeding includes a reference to it as being "Formerly Family Court of Australia proceeding No. 6590 of 1994". Quite how the transfer was effected has not been an issue between the parties, and I have therefore not been asked to pronounce upon it. My point of concern lies in another direction.
I delivered judgment in the proceeding on 21 December 2001. The plaintiffs were unsuccessful. The question of costs now arises. It is submitted on behalf of the successful defendant, Ms. Frost, that she is entitled not only to the costs of the proceeding in this Court, but also the costs reserved in the Family Court. I am also asked by Ms. Frost to order that the order for costs be made personally against the first plaintiff as the executrix of Mrs. Richards' estate and against Mr. Butler as the administrator of that of Mr. Ronald Dare.
The Federal Court (State Jurisdiction) Act 1999 was the progeny of the decision of the High Court in Re Wakim, ex p. McNally[1]. The purpose of the Act is set out in s.1. It is to provide that certain decisions of the Federal and Family Courts have effect for certain purposes as decisions of this Court. Thus, s.6 provides (so far as is relevant) that the rights and liabilities of all persons are and always have been the same as if a judgment of the Family Court, rendered ineffective by reason of the decision in Re Wakim, had been a valid judgment of the Supreme Court. Moreover, by s.7 of the Act (again, so far as is relevant) a right conferred by s.6 is exercisable as if it were a right conferred by this Court.
[1](1999) 198 CLR 511
It was submitted on Ms. Frost's behalf that the reservation of costs in the Family Court was a "right" "conferred" by that Court which, although ineffective by reason of Re Wakim, is now exercisable as if it were "conferred" by a valid judgment of mine.
It seems to me that there are difficulties with this submission. First, the Family Court never ordered that costs be in the cause. An order merely reserving costs does not confer a right. Secondly, even if a right was conferred thereby, no evidence has been called before me to assist in determining upon which party that right was conferred. Had costs been decreed to be costs in the cause, then the position would be different. As things presently stand, however, I am not satisfied that – even assuming I have the power – I should exercise it so as to order that the costs reserved in the Family Court be paid to Ms. Frost.
It was also submitted that any order for the costs of the proceeding in the Supreme Court should be pronounced against each plaintiff individually, rather than against one or other of the several estates or against the beneficiaries. This, of course, must be so. Whether a trustee is entitled to be indemnified out of the trust property is a matter to be determined as between the trustee and the beneficiaries. As between the trustee and a successful opposing litigant, in cases where costs follow the event, the latter is entitled to an order that the trustee himself or herself pay those costs.
By the order of Gillard, J. made on 18 July 2000, John Butler was substituted for Garnet Fielding as the second plaintiff. Again, this is not a matter which affects the right of Ms. Frost, as the successful defendant, to an order against each of the present plaintiffs. Each of those plaintiffs may (or may not) be entitled to an indemnity from the trust property. Mr. Butler may (or may not) also be entitled to an indemnity from Mr. Fielding for so much of the costs as were incurred before Mr. Butler's appointment was effected. Be that as it may, the liability for costs as between Ms. Frost and the plaintiffs remains with the latter. I will, accordingly, order that the title of this proceeding be amended so as to substitute John Charles Doria Butler for Garnet Stewart Fielding. I will also order that as from and incidental to its transfer to this Court the second defendant's costs of the proceeding be taxed as between party and party and, when taxed, be paid by the plaintiffs. There will be no order as to costs in the Family Court.
---
0